HLP v. Holder (Re-Write)

The Humanitarian Law Project's speech should be fully protected under the First Amendment and thus, their speech should not be penalized or prohibited because to do that would be infringing upon virtually all speech promoting lawful activity to, for, or at a designated group, which violates the First Amendment.

The Antiterrorism and Effective Death Penalty Act of 1996 states that it is a crime to support terrorist organizations by providing material support as a matter of national security. It goes through several provisions, in which the Humanitarian Law Project (HLP) argues that these provisions against "training”, providing "expert advice or assistance", or providing "service" or "personnel" to terrorist organizations are too vague to be applied to their intended speech and these provisions’ interactions actually exacerbates their vagueness. These provisions are overly broad, criminalize pure speech, and instead discriminate on the basis of content. HLP states that they wish to engage in pure political speech and that to prohibit that would be criminalizing pure speech and that HLP is entitled to the highest First Amendment protection which states that "Congress shall make no law...abridging the freedom of speech, or of the press." Thus, I find that to penalize HLP would penalize virtually all speech promoting lawful activity to, for, or at a designated group.

I would use “that which promotes self-governance and democracy” and Meiklejohn’s philosophy of a political versus private speech, in that political is absolutely protected, and private speech is protected under the Fifth Amendment in that you would be protected under due process, but you do not have absolute free speech protection. I would use this philosophy in this case because this case involves political speech and a possible breach in national security. However, HLP is engaging in political speech in trying to teach a "terrorist organization" how to negotiate and communicate with governments like the US and the UN in order to proceed with peaceful negotiation, rather than outwardly violent acts. Thus, HLP should be absolutely protected.

I would also possibly use John Stuart Mill’s “harm” principle, in evaluating whether or not these actions might lead to harm. John Stuart Mill's "harm" principle suggests that we need to "distinguish between legal sanction and social disapprobation as means of limiting speech" in that we would need to evaluate whether or not HLP's speech would lead to actual harm, rather than simply offend. As Mill recognizes, "speech fosters authenticity, genius, creativity, individuality, and human flourishing" and thus, as we don't find that HLP's exercise of pure, non-violent speech in an effort to create peace would necessarily lead to harm, and because we cannot restrict free speech based on content discrimination, HLP, according to Mill's philosophy, should be protected.

I would use the theories of Bradenburg v. Ohio because I believe it to be the government’s responsibility to prove that the danger that they think will come of this is real, not imaginary and because the First Amendment protects free speech and cannot be interpreted in another way. Bradenburg v. Ohio protected all speech except that which incited imminent and immediate violence. That which would be a direct threat to national security would be restricted. Thus, because HLP is not inciting immediate or imminent violence and is not creating a direct threat to national security, their First Amendment right to free speech should be fully protected.

In this case, I would subject the government's actions to strict scrutiny level. I think that this level of scrutiny is the most appropriate because this case involves the infringement of a fundamental constitutional right that would be protected by the First Amendment in the Constitution (freedom of speech) and the government should absolutely be responsible for having to provide a compelling reason for pure, non-violent speech to be prohibited. However, I find that the government would not pass strict scrutiny because to prohibit this speech would be violating explicit constitutional protections (First Amendment giving freedom of speech) and HLP is not inciting imminent or immediate violence, and is not creating a direct threat to national security. In addition, the provisions that the government provides are overly broad and to prohibit the speech would be criminalizing free speech on the basis of content.

Overall, I would conclude that non-violent, peaceful, advice that is purely free speech to designated terrorist groups should be protected, not criminalized, because (1) by HLP wanting to provide a terrorist organization with non-violent advice passes Mill's harm theory and should be protected when coinciding with Meiklejohn's philosophy of political v. private speech. Also (2) according to Bradenburg v. Ohio, HLP is not inciting imminent or immediate violence and is not creating a direct threat against national security. They are instead, providing peaceful, non-violent advice to a "terrorist" group and exercising their right to pure, political speech as is their "fundamental", constitutional right. Also, (3) I find that a strict scrutiny level would be necessary here as the government would have to provide a compelling reason to restrict an explicit constitutional protection, but would also find that the law would not pass strict scrutiny. Even in a time of war (or in this case in associating with a terrorist organization), it doesn’t provide the President with a blank check to limit the rights of the Nation’s citizens. Congress’s law is not to violate the First Amendment and the government hadn’t shown that criminalizing purely peaceable expression is necessary to the nation’s security or given any other compelling reason to prohibit or criminalize a constitutional right. Thus, I conclude that the plaintiff’s (HLP's) proposed speech must be protected. I believe that HLP should be allowed to continue on with their right to exercise pure, non-violent, free speech.